The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-11-12
DEPARTMENT INTERIOR,


"To the Commissioner OF the General Land Office:
"Sir-I have just received communica-
ton bearing this date changed by ensures
and Interpolation from previous date adj
dressed to me by you, and will try to
answer it at once, as the matter TO which
1t relates has already been unnecessarily
delayed too long. Fortunately, l will be
able to do this more conveniently because
every point submitted has been a subject
Of reconsideration, having been presented
through;the columns of the press, whose
enterprise put them in possession OF these
points before | was appraised that the de-
cision referred to in your letter had in
cured your disapproyal and met with
your displeasure. have neither the dis
position to enter upon a polemic discus
sion with q subordinate, nor TO engage
with him at his insistence in n gladiatorial
combat, especially 40 in the matter in
the matter in which he has received my
carefully matured instruction in matter
OF pressing Importance in the public nd
ministration OF my public duties. In no
other way can functions of great public
department be successfully executed than
for the chief to command and for the sub
ordinate TO obey. Your excuse for
this extraordinary communication is that
an argumentatiye report OF yours
ms to the Missouri, Kansas 4 Texas rail
way had not been brought to my attention,
and that the Omaha cases We're. There
fore, IL seems before you (me) without ci-
tation OF authority in support OF my your
adjustment, and without argument M be-
half OF the United States
"In this last assumption you are IN
error, and the reverse OF your statement
is the fact You commence by advising
me that my decision in the Omaha case,
rendered, as you say, without benefit OF
your counsel, was in direct antagonlsm
10 any decision of the department You,
however, Immediately state, in substance,
that prior to 1879 the government rule OF
adjustment had been uniformly in ac-
cordance with the practice laid down
by me and identical with the report on the
Missouri, Kansas x Texas case, 10 which
YOU refer me, for your argument is directed
10 the single point of the institution OF
suits by the government to recover lands
convened more than twelve years since, Tor
precisely the character OF lands discussed
IN my decision Of the Omaha case.
The decision appears Of record upon the
subject in your office Am j 10 under
stand YOU do not consider the uniform
practice OF the land department for twenty
five years as having force and effect OF q
decision, unless the principles involved
have been specially controyerted by some
one. and freely submitted for discussion!
Having thus. yourself, shown me my de-
cision in exact harmony with the practice
OF the department until 1877, j shall
not waste time in discussing the decision OF
the supreme court in the Leavenworth,
Iavrcrce x Galveston railway company,
nor the opinion Of Attorney General
Dcyens and ex-Secretery Schurz in partial
execution thereof which decision and
opinion YOU cite as abrogating former
-praticc OF the executive The doctrine in
that case enumerated has been in expires
terms oyerrulcd by subsequent decisions
Of the supreme court, and was partially
oyerruled by Mr.. Deycns In the very opin
ION which YOU cite me. Not anticipating
anyone would rely for present authority
upon nm oyerrulcd Obitcr in q decision, and
upon the executive action based thereon
/ did not deem specified discussion
thereof necessary in my former opinion
although all decisions applicable 10 the
questions had before been carefully eN
amined and fully considered my me
Neither do deem II necessary TO repea
my discussion Of the Barney case. VI!
construction OF IL has already beeI
communicated to you. Your repl!
makes no impression upon me
Reduced Of its essentials, II consist
OF hut two points The first II, that th'
question In the Omaha case WIS MOI bcion
the court In the Barney case, and II wa
not, therefore, adjudication oil That cas-
The second il, that II there are remark
In the course Of that decision TO the ciicc
that the company was entitled I
indemnity for deficiencies arising irot
reservations existing at the date .
the grant, such remarks would u
(ouoting from Dcyens) 'argucndo, an
"a dictum entitled only 10 the weigh
which IL given TO the dicta OF cinincr
Judges II il immaterial TO me which
these points you may be pleased TO rel
upon, because the court IN the Barne
case was confined by the terms oi W
granting act 10 the consideration oil land
sold, preemptcd or otherwise appropra
ed. Il does not follow, but IN quite COZ
trary, that in deciding the Omaha case
should exclude all other classes oil lan'
which Congress In said Omaha grant ~
specifically added TO and grouped win "
same class Of lands, for loss OF the rght
indemnity maintained in the barney cis
''In the grant undcrconsideraiion, III "
Barney case, the indemnity was granite
specifically for LOSSES OF lands sold, pr
empted or otherwise appropriated ana !
the grant under consideration by me III "
Omaha case, the indemnity was spccihcal
a allowed for losses Of land sold, PIecnp!e
reserved, or otherwise appropriate
Even II your assertion OF obitcr Dc admi'l'
as 20 the Barney decision, J prefer 70 i'
low and shall certainly follow thc unai
nous dicta Of justice OF our highest )u'
dicial tribunal until hlgn
authority Of judicial character q
be furnished me with dincre
rule Of construction. IL Is true you thll
the opinion Of the court IN the barn
case does not contain any e,Nprcssl3
which can bc received M declaring III
indemnity is allowable for rcservallo
existing at the time OF the grant ~
have quoted largely from the deeis'
itself 10 support your oplhVn y.
not deem II necessary 10 say NuIm' w
quotations from the decision suiiclcn
answer your opinion. One woru
your complaint that my Omaha dcclsl
,rocccds 10 state a point that i (yo
ayc moi prcsented, and an argument
1.n,A have NOT made When
Omaha case came before me II
ACCOMPANIED not only with your |,
port, which, ~ you uuiy t i
contained no arguments whatever IN
synnort but also with other papcn
dorrments for my information. Am'
these, brought before me 1T my own owl,
Quest, was the opinion Of the assistant
, crncy general in this dep9I'h'h',
which the distinction TO when yo9 y
49, DELIBERATELY argued and Insisted UP